In Trump's NY hush-money case, key decisions at his court appearance on Thursday will shape his first felony trial
- Donald Trump returns to court Thursday in his New York hush-money case.
- On tap are rulings on scheduling, evidence, and a motion to dismiss ahead of a March 25 trial date.
Donald Trump has a court date in Manhattan on Thursday.
It will be the first time since his April arraignment that he must appear, in person, on his felony hush-money case, the one alleging that he lied 34 times in business documents to hide a $130,000 payment that silenced porn actress Stormy Daniels just before the 2016 election.
The hush-money case is on track to be tried first out of the former president and GOP frontrunner's four felony indictments. Jury selection is set for March 25, a date halfway through the primary season.
"That is a date certain for the commencement of this trial," the judge, NY Supreme Court Justice Juan Merchan, warned on the last hush-money court date, attended by Trump virtually last spring.
Trials on Trump's other indictments — his Florida classified documents case, his DC insurrection case, and his Georgia election interference case — seem far off, by comparison, destined for summer-time dates at the earliest.
There's another distinction — and this one is rather annoying.
Trump's hush money case is the only one of the four without electronically-available documents. The judge is expected on Thursday to rule from the bench, without hearing arguments, on a series of motions that are only available by asking to copy them in person, at the courthouse clerk's office.
Business Insider has done a bit of that legwork for you. Here — based on insider interviews, court-system announcements, and a few long trips to the clerk — is what's on tap for Trump on Thursday, likely his last hearing date before his first criminal trial.
Crowds, cameras, high security
Trump will be escorted into court by an elbow-to-elbow phalanx of Secret Service agents and state court officers, just like last time, at his arraignment.
He'll be kept away from the crowds of press, protesters and supporters, who will be relegated to the sidewalks outside Manhattan Criminal Court, a somewhat grimy building a short walk north of the Brooklyn Bridge.
Inside the courthouse, attendance will be strictly limited. Trump will ride an elevator to the 15th floor, where he will walk past a metal pen holding only 24 photographers, a limit noted Friday by state court-system officials.
These two dozen cameras will be all Trump gets should he try to hold a hallway press-conference-slash-gripe-session, as was his habit in his recent civil fraud trial, held one block south of the criminal courthouse.
A trial date will be set in stone
Once inside Merchan's courtroom, Trump will sit at a defense table with his legal team for an expected two-to-three-hour hearing.
Seated behind him will be an audience that includes 64 members of the press, all frenetically clicking away on laptops.
An overflow courtroom with a video hookup will have room for 100 more reporters, court officials said. But there is to be no recording or streaming of the proceedings by order of the judge.
Given Trump's penchant for delay, it's likely the hearing will include a back-and-forth about scheduling, with his lawyers testing for any wiggle room in that March 25 "date certain," as they tried in August.
Back then, the defense argued that the hush money trial would overlap with the DC insurrection trial, then scheduled for March 4, but now delayed by Trump's continuing "presidential immunity" efforts.
Merchan pushed back on any premature trial-date tinkering in a letter he sent the hush-money defense team in early September. The judge said he preferred, as he put it, to let Trump's "rapidly evolving trial schedule" shake out for a while longer.
"We can discuss scheduling and make any necessary changes when we next meet on February 15, 2024, for decision on motions," the judge wrote then.
Squabbling over evidence
There's been plenty of squabbling over evidence in the past six months, the hush-money case file shows. It's yet to be seen what disputes may remain for the judge to referee on Thursday.
Manhattan prosecutors have been steadily turning over evidence to Trump's lawyers, as required by law, since May 23, when the first hand-over to the defense included grand jury transcripts and witness-interview notes.
That first evidence batch also included the names of 33 books that prosecutors believe could come into play at trial. A sort of a hush-money required-reading list, it spans the left-right spectrum, with authors ranging from Stormy Daniels to journalist Bob Woodward to Trump himself, who has four books named.
A few hand-offs to the defense later, on July 24, prosecutors filed what's called a "certificate of compliance" or "COC," certifying that they had now completed their evidence-sharing obligations and were ready for trial. (Additional, newly-available evidence has also been shared since then, prosecutors have said.)
The filing of that COC started a statutory clock ticking. Within 30 days — meaning by August 23 — the defense was required to turn over its cache of evidence to prosecutors, along with notice of any expert witnesses Trump will call at trial.
But by mid-November the defense had shared nothing, veteran prosecutor Matthew Colangelo complained in a letter to the judge. Four times, prosecutors emailed the defense to see what the hold-up was, and four times their correspondence went unanswered, Colangelo wrote.
Then, in late September, Trump cut loose a 48-page, catch-all defense filing called an "omnibus motion." (This is a routine pre-trial motion that asks the judge to dismiss the indictment, among other relief — more on that, and the document itself, in a bit.)
On the 46th page of his "omnibus," as it's called for short, Trump asks the judge to invalidate the prosecutors' COC — and restart the clock on that 30-day evidence-handoff deadline — because of two technicalities.
The first? Prosecutors shared their hush-money reading list, but not the books themselves, the defense complained. (Prosecutors counter that they offered in writing to produce copies of the 33 books, which are all publicly available anyway, but the defense never asked for copies.)
The second technicality? Prosecutors failed to say which evidence they intend to introduce in their direct case, at trial, the defense contends. (Prosecutors counter that they've already done so, and they'll update the defense "when we determine any additional exhibits that we will introduce.')
Also apparently yet resolved is the matter of Trump failing to tell prosecutors who his trial experts will be, they contend. On December 6, Trump defense lawyer Susan Necheles wrote to prosecutors to say they are still "in the process of arranging to interview possible expert witnesses," according to court documents.
There's been no update on evidence or defense experts in the public file since then.
Back to that "omnibus"
Much of Thursday's hearing will be taken up by the judge ruling on Trump's collected big asks — that pre-trial defense wish list known as an omnibus motion.
Trump's September 29 omnibus asks the judge to issue nine orders in all, according to its introductory filing.
Dismissing all counts because of "preindictment delay."
Dismissing all counts because they are "legally defective."
Ordering prosecutors to turn over their legal instructions to the grand jury.
Granting a selective-prosecution hearing — so that the defense can argue Trump was "impermissively targeted."
Dismissing the indictment as too old under the statute of limitations.
Dismissing repetitive counts in the indictment.
Ordering prosecutors to produce a complete bill of particulars.
Granting a hearing on supposed "grand jury secrecy violations" and then dismissing the indictment.
Striking prosecutors' "defective" COC and ordering them to comply with all evidence obligations.
Prosecutors offered their point-by-point rebuttal to Trump's omnibus in a 99-page filing from November 15.
Donald Trump outside Manhattan Criminal Court on the day of his arraignment on 34 felony counts of falsifying business records.REUTERS/Eduardo Munoz Some stray subpoena issues
The judge may also rule on a few remaining side disputes, including one involving prosecutors' demand that Trump say immediately if he plans to rely on an "advice of counsel" defense.
There may also be some subpoena disputes for the judge to resolve. It's hard to know in advance, since, as with the parties' other disagreements over evidence, these subpoena disputes appear to have played out largely in private email correspondence between prosecutors and the defense.
But according to available court documents, Trump has tried, and failed, to subpoena a huge cache of paperwork from key prosecution witness Michael Cohen, his former personal attorney and the admitted bag-man for the hush-money payments.
The judge quashed Trump's subpoena, which had demanded years of Cohen's communications with the Manhattan District Attorney's Office, the FBI, and the US Attorney's Office, along with his tax returns for 2016-2018 and other personal documents.
Trump asked in mid-December for the chance to reargue the quashing of his Cohen subpoena… And on January 25, in the court file's most recent document, prosecutors opposed any rearguing.
Prosecutors, too, have had to fight for at least two of their subpoenas. They want Trump Organization emails from 2017, and Trump's deposition in the E. Jean Carroll defamation case, in which he describes the Access Hollywood tape.
Prosecutors in June opposed Trump's efforts to quash these two demands.
It's unclear from the available court files whether either side's subpoena disputes have been resolved.
An attorney for Trump and a spokesperson for the district attorney's office did not immediately respond to requests for comment.